Brad C. Angleton, Pro Se
Jeffrey A. Modisett
Thomas D. Perkins
Michigan City, Indiana
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Deputy Attorney General
Brad C. Angleton, Pro Se
Jeffrey A. Modisett
Thomas D. Perkins
an enhanced sentence of fifty-five years imprisonment.See footnote
His conviction was affirmed on
direct appeal, but the case was remanded for a new sentencing hearing. See Angleton v.
State, 686 N.E.2d 803 (Ind. 1997). A new sentencing hearing was held, and Angleton was
again sentenced to fifty-five years. He appeals that sentence, raising the following issues:
(1) whether the trial court erred in denying his motion for change of judge; (2) whether the
trial court erred in failing to ask him if he wanted to make a statement before sentencing him;
(3) whether the trial court erred in its articulation of aggravating circumstances; and (4)
whether his sentence is manifestly unreasonable. We affirm the trial court.
wished to make a statement at sentencing. Indiana Code § 35-38-1-5 provides in relevant
part that [t]he defendant may also make a statement personally in his own behalf and, before
pronouncing sentence, the court shall ask him whether he wishes to make such a statement.
The trial court did not ask Angleton at the second sentencing hearing whether he wished to
make a statement. Angleton made no objection to the trial court's omission, but now raises
the issue and contends that he is entitled to yet another sentencing hearing because of it.
Angleton does not contend that he was unaware of his right to address the court at sentencing or that he would have made a statement if asked. Angleton was a practicing attorney in Indiana from 1985 to 1993. This was his second sentencing hearing, and he was asked at the first hearing whether he wished to make a statement but declined. Moreover, his counsel was asked at the second hearing if he had any witnesses to present and stated that he did not. A defendant, especially one under these circumstances, may not sit idly at a sentencing hearing, fail to object to a statutory defect in the proceeding, then seek a new sentencing hearing on that basis on appeal. The failure to object constitutes waiver. Locke v. State, 461 N.E.2d 1090, 1092-93 (Ind. 1984); Robles v. State, 705 N.E.2d 183, 187 (Ind. Ct. App. 1998).See footnote 2
aggravator and in its articulation of mitigating circumstances.See footnote
First, Angleton contends that
the trial court's finding that the killing was cold-blooded and calculated was improper
because it uses an element of the offense to aggravate a sentence. Specifically, Angleton
argues that the finding that he shot Cheryl in the head while she slept was calculated or cold-
blooded is simply another way of saying that he acted knowingly or intentionally, which
repeats the material elements of the offense. Ind. Code § 35-42-1-1 (1998) (defining murder
as knowingly or intentionally kill[ing] another human being). A trial court may not use
a factor constituting a material element of an offense as an aggravating circumstance.
Johnson v. State, 687 N.E.2d 345, 347 (Ind. 1997); Holmes v. State, 642 N.E.2d 970, 972
(Ind. 1994). However, killing one's wife by shooting her in the head while she was sleeping
is something beyond a mere knowing or intentional killing as those terms are defined by
It necessarily requires some degree of calculation or planning. The trial court did
not abuse its discretion when it found this killing to be calculated and cold-blooded.
Angleton also contends that the trial court erred by finding his failure to consult with or inquire of police investigating agencies concerning any progress as to ascertaining the killer and the perpetrator of the burglary to be aggravating. As we observed on direct
appeal, a defendant's constitutional privilege against self-incrimination protects him or her
from being compelled to confess to the police. Angleton, 686 N.E.2d at 816 (citing United
States v. Lemon, 723 F.2d 922, 937 (D.C. Cir. 1983)). We held that the trial court erred
when it relied on the conclusion that Mr. Angleton knew what happened, and it was just a
question of whether or not the Indianapolis Police Department could eventually put it
together, as to what happened . . . . Id.
Angleton had no duty to speak with the police investigating his wife's murder. Although he initiated contact with police to report a burglary and file a missing person report, his subsequent failure to follow up on these reports in the face of obvious police suspicion that he might have murdered Cheryl is not a proper basis on which to aggravate his sentence. However, as noted above, Angleton's failure to cooperate with police was only part of the nature and circumstances of the crime aggravator. The remaining components of that aggravator were proper, and a single aggravating circumstance may be sufficient to enhance a sentence. Thacker v. State, 709 N.E.2d 3, 10 (Ind. 1999); Sweany v. State, 607 N.E.2d 387, 391 (Ind. 1993).
Angleton also contends that the trial court said absolutely nothing at the second sentencing hearing about nineteen letters that were submitted on his behalf at the first sentencing hearing. Although defense counsel moved to incorporate those letters into the record at the second sentencing hearing and the State requested that the trial court take notice of and adopt the evidence presented at the previous sentencing hearing as evidence in this case, the trial court did not rule on either motion. Angleton contends that the letters
were a testament to his character, personality, childhood, education, professional service
as an attorney, law-abiding life, unlikelihood of committing another crime, and likelihood
of rehabilitation. He cites two statutory mitigating circumstances that he suggests the trial
court could readily have found but did not based on these letters and other evidence
presented at the sentencing hearings. See Ind. Code §§ 35-38-1-7.1(c)(6) (1998) (defendant
has no history of criminal or delinquent activity) & 35-38-1-7.1(c)(7) (defendant is likely
to respond affirmatively to probation or short term imprisonment). As explained above, the
trial court did find Angleton's lack of criminal history to be a mitigating circumstance.
Moreover, we find no error in the trial court's failure to find that Angleton was likely to
respond affirmatively to probation or short term imprisonment as a mitigating circumstance.
A purely probationary sentence or short-term imprisonment were not options available to
trial court. The offense of murder is not suspendable, see id. § 35-50-2-2(b)(4)(A), and the
minimum sentence at the time was thirty years. See Ind. Code § 35-50-2-3(a) (1993).
In sum, although not a model of clarity or thoroughness, the trial court's sentencing statement articulated one valid aggravating circumstance and several mitigating ones. The trial court concluded that [b]alancing, however, is such that I again find the aggravating circumstances outweigh the mitigating circumstances to the extent that an increase from the presumptive sentence to the sentence of 55 years is called for and is appropriate under all the circumstances of the case. This adequately fulfilled the requirement that a sentencing statement demonstrate that the mitigating and aggravating circumstances have been evaluated and balanced in determining the sentence. Crawley v. State, 677 N.E.2d 520,
521-22 (Ind. 1997). Angleton is not entitled to a new sentencing hearing.
to Angleton, [t]here is nothing about this offense worse than Murder is by its nature:
wrongly taking life. However, as the trial court observed, killing of one's wife for these
reasons and under these circumstances is calculated, if not cold-blooded. The trial court
was justified in aggravating the sentence based on the nature and circumstances of this
murder and its decision to do so is entitled to deference in our review of the sentence under
Appellate Rule 17(B).
Angleton also points to his character as supporting a reduction of his sentence. The trial court found that Angleton had no criminal record, was unlikely to commit another crime, and had assisted in the literacy program at the Marion County jail as well assisting inmates and organizations while incarcerated at the Department of Correction. However, after weighing these mitigating circumstances pertaining to Angleton's character against the nature of the offense, the trial court concluded that an enhanced, but not maximum, sentence of fifty-five years was appropriate.
Angleton seeks to compare his case to that of the seventeen-year-old defendant in Widener v. State, 659 N.E.2d 529 (Ind. 1995). In that case, this Court reduced consecutive sixty and ten year sentences for felony murder and conspiracy to commit robbery to a fifty year concurrent term. Id. at 534. The trial court found only the defendant's youthful age as a mitigating circumstance, but we observed the presence of several other mitigating circumstances including the defendant's lack of a significant history of criminal activity, his guilty plea and acceptance of responsibility for his actions, and that the plan was initiated and formulated by his codefendants. Id. Angleton contends that he was a thirty-three year
old attorney at the time of the offense with no prior record of any sort, a more significant
accomplishment, surely, than Widener's seventeen year old life's clean record. However,
this overlooks the other significant mitigating circumstances found in Widener, and not
present in Angleton's case. Moreover, it fails to acknowledge that the trial court in his case,
unlike Widener's, found and presumably weighed all significant mitigating circumstances
in determining his sentence.
Angleton also points to other cases in which this Court has reduced a sentence. For example, in Newhart v. State, 669 N.E.2d 953, 956 (Ind. 1996), this Court held that the existence of only one valid aggravating circumstance -- [t]he brutal and serious nature of the crime exemplified by numerous wounds inflicted with different weapons -- was inadequate to support the imposition of a maximum sentence for murder. However, it was sufficient to support some enhancement, and we accordingly reduced the sentence to fifty years. Id. Angleton contends that the killing of his wife was not a brutal or especially violent one, unlike Newhart's violent, sustained, merciless attack upon his wife . . . . Angleton's case is different, however, because he did not receive the maximum sentence and his crime involved some degree of planning or calculation, which was apparently not present in Newhart. Although severe, Angleton's sentence is not clearly, plainly, and obviously unreasonable. Cf. Thacker v. State, 709 N.E.2d 3, 9-11 (Ind. 1999) (135 year sentence for murder, conspiracy to commit murder, and burglary was not manifestly unreasonable for a defendant who had no criminal history and which presented the nature and circumstances
of the crime as the sole aggravating circumstance).See footnote
SHEPARD, C.J., and DICKSON and SELBY, JJ., concur.
SULLIVAN, J., dissents believing the balance of aggravating and mitigating circumstances identified by the majority support imposition of a sentence closer in length to the standard sentence for murder authorized by the legislature.
defendant and leave no question that the defendant was given an opportunity to speak on his own behalf. Id. at 344. Although this language from Ross and that of the statute itself places an affirmative duty on the trial court, the failure of a defendant to object nevertheless waives any claim of error on appeal. Locke, 461 N.E.2d at 1092-93; Robles, 705 N.E.2d at 187.
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